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Tuesday, October 18, 2016

ON HIJAB AND AWRAH OF WOMEN AND SLAVES ( from FROM EL FADL’S ‘speaking in God’s name p.481-484)

ON HIJAB AND AWRAH OF WOMEN AND SLAVES ( FROM EL FADL’S ‘speaking in God’s name p.481-484)-reproduced verbatim

There are several material elements that are often ignoredwhen discussing the issue of ḥijāb or the ‘awrah of women.These elements suggest that the issue of fitnah might havedominated and shaped the discourse on the ‘awrah of women,but they are also informative as to the possible authorialenterprise behind the fitnah traditions. There are six mainelements that, I believe, warrant careful examination in tryingto analyze the laws of ‘awrah, and that invite us tore-examine the relationship between ‘awrah and fitnah.Firstly, early jurists disagreed on the meaning of zīnah(adornments) that women are commanded to cover. Somejurists argued that it is all of the body including the hair andface except for one eye. The majority argued that womenmust cover their full body except for the face and hands.Some jurists held that women may expose their feet and theirarms up to the elbow. Importantly, someone such as Sa‘īd b.Jubayr asserted that revealing the hair is reprehensible, butalso stated that the Qur’ānic verses did not explicitly sayanything about women’s hair.124 Secondly, the juristsfrequently repeated that the veiling verse was revealed inresponse to a very specific situation. As explained above,corrupt young men would harrass and, at times, assaultwomen at night as these women headed to the wild to relievethemselves. Apparently, when confronted, these men wouldclaim that they did not realize that these women were Muslimbut thought them non-Muslim slave-girls, and, therefore, notunder the protection of the Muslim community. In Medinasociety any individual was under the protection of either aclan or, if the individual was Muslim, under the protection ofMuslims. Therefore, these verses seem to address a veryspecific, and even peculiar, historical social dynamic. Theinteraction between the text and the text’s social context is noteasily transferable or projectable to other contexts.125Thirdly, asnoted above, Muslim jurists consistently argued that the lawsmandating the covering of the full body did not apply toslave-girls.126 In fact, it is reported that ‘Umar b. al-Khaṭṭābprohibited slave-girls from imitating free women by coveringtheir hair. Apparently, Muslim jurists channelled thehistorical context of the verses into legal determinations thatpromulgated a particular social stratification. However, it isnot clear whether the social stratification addressed by theQur’ān is the same as that endorsed by the jurists. Fourthly,the jurists often argued that what could be lawfully exposed ina woman’s body was what would ordinarily appear accordingto custom (‘ādah), nature (jibillah), and necessity (ḍarūrah).Relying on this, they argued that slave-girls do not have tocover their hair, face, or arms because they live an activeeconomic life that requires mobility, and because by natureand custom slave-girls do not ordinarily cover these parts oftheir bodies. This makes the focal point of the law custom andfunctionality. Arguably, however, women in the modern agelive an economically active life that requires mobility and,arguably, custom varies with time and place.127 In otherwords, if the rules prescribing veiling were mandated to dealwith a specific type of harm, and slave-girls were exemptedbecause of the nature of their social role and function,arguably, this means that the rules of veiling are contingentand contextual in nature. Fifthly, several reports state thatwomen, Muslim or non-Muslim, in Medina, normally wouldwear long head-covers – the cloth usually would be thrownbehind ears and shoulders. They would also wear vests openin the front, leaving their chests exposed. Reportedly, thepractice of exposing the breasts was common until late intoIslam. Several early authorities state that the Qur’ānic verseprimarily sought to have women cover their chests up to thebeginning of the cleavage area. Sixthly, there is a sharpdisjunction between the veiling verses and the notion ofseduction. Seduction could be caused by slave-girls, or could483be between woman and man, woman and woman, or man andman.128 A man could be seduced by a slave-girl, and awoman could be seduced by a good looking man, yet neitherslave-girls nor men are required to cover their hair or faces.Does the fact that a particular man might be sexually enticingto women affect the obligations of concealment as to thisman?

For the six points above see, al-Ṭabarī, Jāmī‘ al-Bayān,18:93–95, 22:33–34 (mentions a variety of early opinionsincluding the up to the elbow and the beginning of cleavagearea determinations; also mentions the distinction betweenfree and slave girls; mentions the historical practice);al-Nasafī, Tafsīr al-Nasafī (Cairo: Dār Iḥyā’ al-Kutubal-‘Arabiyya, n.d.), 3:140, 313, (mentions ‘ādah, jibillah, andḥājah; women need to reveal their faces, hands, and feet bycustom, nature, and need; mentions the distinction applicableto slave-girls; mentions the historical practice); al-Jaṣṣāṣ,Aḥkām, 3:409–410, 486, mentions that slave-girls do not haveto cover their hair; mentions the historical practice); al-Kiyyāal-Harrāsī, Aḥkām al-Qur’ān (1974), 4:288, 354 (notesslave-girls do not have to cover their faces or hair); Ibnal-‘Arabī’, Aḥkām al-Qur’ān (n.d.), 3:1368–78, 1586–87527(mentions a variety of details to adornments; discusses therule as to slave-girls); al-Qurṭubī, al-Jāmī(1993), 12:152–153,157; 14:156–157 (mentions that the verse was revealed toaddress the harassment of women, and to differentiateslave-girls from Muslim women; notes the opinion that heldthat the verse called for the covering of the bosom area); IbnKathīr, Mukhtaṣar Tafsīr Ibn Kathīr, 2:600; 3:114–115,(mentions determinations as to the bosom; also notes that freeMuslim women must cover their faces); Abū Ḥayyānal-Andalusī, Tafsīr al-Baḥr al-Muḥīṭ, 6:412; 7:240–241(mentions custom, nature, necessity; mentions the historicalpractice as to revealing the bosom; mentions the distinction asto slave-girls); al-Zamakhsharī, al-Kashshāf 3:60–62, 274(mentions the historical practice, distinction as to slave-girls,the rules as to functionality and custom, mentions thatcovering ought not cause hardship); Ibn al-Jawzī, Zādal-Masīr fī ‘Ilm al-Tafsīr, 5:377–378; 6:224 (mentionsmashaqqah – hardship); al-Māwardī, al-Nukat wa al-‘Uyūn,4:90–93, 424–425, (notes the opinion that the purpose ofrevelation was to instruct women to cover their bosoms;mentions the differentiation as to slave-girls); al-Shinqīṭī,Aḍwā’ al-Bayān, 6:192–203, 586–600 (mentions a variety ofpositions; mentions determinations as to revealing the arm upto the elbow and the view that the point is to cover the bosom;mentions the historical practice and differentiation as toslave-girls; author supports covering the face); Ibn Taymiyya,al-Tafsīr, 6:23, (notes that the law of veiling does not apply toslave-girls); Fakhr al-Dīn Muḥammad al-Rāzī, al-Tafsīral-Kabīr (a.k.a Mafātīḥ al-Ghayb), 23:176–179; 25:198–199,(mentions al-‘ādah al-jāriyah (the habitual custom) andfunctionality as the focal issues in determining what womenought to cover; mentions the historical practice and thedistinction as to slave-girls); Ibn ‘Aṭiyya, al-Muḥarrar528al-Wajīz, 4:178, 399 (mentions the determinations as to thebosom and arm up to the elbow; mentions the rule offunctionality and custom; mentions the historical practice andthe distinction as to slave-girls); al-Suyūṭī, al-Durral-Manthūr, 5:45–46, 239–241 (mentions the determinationsas to the arm up to the elbow and the bosom; notes thediscussion regarding the beginning of the cleavage area;mentions the historical practice and the distinction as toslave-girls); al-Burūsī, Tanwīr al-Adhhān, 3:57–59, 254–255,(mentions the determinations as to the arm up to the elbowand the bosom; mentions the historical practice anddistinction as to slave-girls); Abū Ḥafṣ ‘Umar b. ‘Alī Ibn‘Ādil al-Dimashqī, al-Lubāb fī ‘Ulūm al-Kitāb, 14:355–358;15:588–590 (mentions that according to some reports theverse was revealed to vindicate ‘Alī’s family. Also mentionsthat other reports contend that hypocrites of Medina wouldsolicit women at night. Girls who practiced prostitution wouldrespond to their solicitation. The verse was revealed partly toend this practice. Mentions the rule of practice and custom(mā u’tīda kashfuh), and functionality and rule of necessity;mentions the distinction as to slave-girls); al-Alūsī, Rūḥal-Ma’ānī (1985), 18:140–142; 22:89, (mentions the issue offunctionality and that slave-girls lead an active economic life;mentions custom, habit, andnature; mentions the historical practice); al-Ṣāwī, Ḥāshiyatal-Allāmah, 3:136–137, 288–289 (mentions variouspositions).

ON WOMEN’S AWRAH-it is not used in the early discussion onwomen’s attire in prayer. The traditions instead address thekinds of clothing a woman must wear in prayer, anddistinguishes between the appropriate attire for free and slavewomen. Specifically, al-Ṣan‘ānī relates traditions on twoissues. The first issue concerns what a free woman must wearwhen praying. Generally, the items for consideration are akhimār, jilbāb, dir‘ sābigh, and milḥaf Al-Ṣan‘ānī,al-Muṣannaf 3:128–129, 131, 135; Ibn Abī Shayba,al-Muṣannaf 2:36–37. See also, al-Māwardī, al-Ḥāwī517al-Kabīr, 2:169; Ibn Mufliḥ, al-Mubdi’ 1:366; al-Ramlī,Nihāyat al-Muḥtāj (1992), 2:13–14; al-Bahūtī, Kashshāfal-Qinā‘, 1:318; Ibn Ḥazm, al-Muḥallā, 2:2:249–250. Thesecond issues concerns whether a slave woman must alsowear a khimār for prayer? The khimār is generally a garmentthat covers a woman’s head. Ibn Manẓūr, Lisān al-‘Arab,4:257; Ibn Mufliḥ, al-Mubdi’ 1:366; al-Bahūtī, Kashshāfal-Qinā‘ 1:318. The meaning of dir’ sābigh generallysuggests some type of loose-fitting garment that extends toone’s feet. The relevant distinction is that a dir‘ does notnecessarily cover a woman’s head. Ibn Manẓūr, Lisānal-’Arab, 8:81–82; Ibn Muflih, al-Mubdi’ 1:366; Lane,Arabic-English Lexicon 1:871–872. Jilbāb refers to a garmentthat is larger than a khimār and generally covers a womanshead and chest area, but may also cover her entire body. Insome cases it is used as a synonym for khimār; and in othersfor an izār. Ibn Manẓūr, Lisān al-‘Arab, 1:272–273. And amilḥaf is a blanket (dithār) or cover which is wrapped overother clothes. Ibn Manẓūr, Lisān al-’Arab, 9:314. Al-Ṣan‘ānīreports that the Prophet said that menstruating free womenmust wear a khimār, otherwise their prayer will not beaccepted. Al-Ṣan‘ānī, al-Muṣannaf 3:130, 131; Ibn AbīShayba, Kitāb al-Muṣannaf 2:39–40. The reference tomenstruation is generally regarded as a reference to adulthoodor the age of majority. Al-Marghīnānī, al-Hidāya, 1:43.Women who are not adults are not necessarily subject to thisrequirement. Al-Ṣan‘ānī, al-Muṣannaf 3:132. In anothertradition, a woman is supposed to wear a khimār, a dir’ andan izār, although there is some countervailing traditionsagainst this position. Ibn Muflih, al-Mubdi’ 1:366. Sometraditions suggest that an acceptable dir‘ must be long andloose enough to cover the appearance of a woman’s feet,although without a khimār, it is insufficient. Al-Ṣan‘ānī,518al-Muṣannaf 3:128; Ibn Abī Shayba, Kitāb al-Muṣannaf 2:36.One tradition relates that ‘āisha was seen wearing duringprayer a garment around her waist (mu’tazirah), a dir‘ and athick khimār. Al-Ṣan‘ānī, al-Muṣannaf p. 129. On the otherhand, Umm Ḥabībah, a wife of the Prophet, is reported tohave worn a dir‘ and an izār that was large enough to drapearound her and reach the ground. Notably, she did not wear akhimār. Id. Yet another tradition relates that the Prophet’swives Maymūna and Umm Salamh would wear a khimār anda dir‘ sābigh. Ibn Abī Shayba, Kitāb al-Muṣannaf 2:36.

The issue of ‘awrah is complex partly because it isextremely difficult to retrace and reclaim the historicalprocess that produced the determinations as to ‘awrah. Theconventional wisdom maintains that early on, Muslim juristsheld that what should be covered in prayer should be coveredoutside of prayer. This, however, is not entirely true. Thedominant juristic schools of thought argued that the ‘awrah ofmen is what is between the knee and navel. A man ought tocover what is between the knee and navel inside and outsideof prayer. A minority view, however, argued that the ‘awrahof men is limited to the groin and buttocks only; the thighs arenot ‘awrah. The ‘awrah of women was a more complexmatter. As noted below, the majority argued that all of awoman’s body except the hands and face is ‘awrah. AbūHanifa held that the feet are not ‘awrah, and some argued thathalf the arm up to the elbow, or the full arm, is not a ‘awrah.A minority view held that even the face and hands are ‘awrahand therefore, must be covered as well. An early minorityview held that the hair and calves are not ‘awrah. In addition,some argued that women must cover their hair at prayer, butnot outside of prayer. Importantly, the jurists disgreed onwhether the covering of the ‘awrah is a condition precedent519for the validity of prayer. The majority held that covering the‘awrah is a fard (basic and necessary requirement) so that thefailure to cover the ‘awrah would invalidate a person’sprayers. The minority view (mostly but not exclusivelyMālikí jurists) held that covering the ‘awrah is not a conditionprecedent for prayer – accordingly, this school argued thatcovering the ‘awrah is among the sunan of prayer (therecommended acts in prayer), and the failure to cover the‘awrah would not void a person’s prayers. A large number ofHanafī jurists argued that as long as three-fourth of the bodyis covered the prayer is valid. Interestingly, Mālik reportedlyallowed people to pray naked (‘urāh), if they were unable toprocure dressing garments. However he suggested that suchpeople should pray alone so as not to see each other’s ‘awrah,and remain standing throughout. However if they are prayingin the dark of night (layl muẓlim), they may pray incongregation with an imām leading them. Saḥnūn b. Sa‘īd,al-Mudawwana al-Kubrā (Beirut: Dār Ṣadr, n.d.), 1:95–96.See also, al-Qarāfī, al-Dhakhīrah, 2:106–107; Ibn Mufliḥ,al-Mubdi‘, 1:370–374. The Shi‘ī al-Tūsī adopts the sameview and also allows them to pray in congregation duringdaylight hours, as long as they pray in only one line and in asitting position. al-Ṭūsī, al-Mabsūt, 1:87. Al-Bahūtī goes sofar as to say that even in this case, congregational prayerremains obligatory. Al-Bahūti, Kashshāf al-Qinā’, 1:324. Seealso, Ibn Ḥazm, al-Muḥallā, 2:255–257. Being unclothed forprayers does not allow one to steal clothes out of necessity,according to al-Ramlī. Since one can pray naked, there is nonecessity as in the case of stealing clothes to protect oneselffrom heat or freezing temperatures, or stealing food to preventdeath by starvation. Al-Ramlī, Nihāyat al-Muḥtāj (1992),2:12. See also, al-Bahūtī, Kashshāf al-Qinā‘ 1:322–324, whoaddresses the various means by which those without sufficient520clothes can pray. The overwhelming majority of jurists heldthat the ‘awrah of a slave-girl, or even a female servant girl,is different. Some jurists argued that the ‘awrah of such awoman is between the knee and navel – the same as a man.The other jurists held that the ‘awrah of such a woman isfrom the beginning of the chest area to the knees and down tothe elbows. Therefore, the majority agreed that a slave-girl orservant-giri may pray with her hair exposed. A minority viewargued that slave-girls should cover their hair in prayer, butdo not have to do so outside of prayer. In short, it seems to methat the conventional wisdom is not exactly correct; thereseems to be sufficient grounds for differentiating between the‘awrah in prayer and outside of prayer. Furthermore, as notedbelow, the ‘awrah of slave-girls or servant-girls, inside andoutside of prayer, raise serious questions about the basis forthe historical juristic determinations regarding the ‘awrah ofwomen. See, on the law of ‘awrah: al-Ṣan‘ānī, al-Muṣannaf3:128–136 (documents some of the early opinions). ForMālikī school, see: Ibn Rushd (II), Bidāyat al-Mujtahid,1:156–158; Ibn Rushd (I), al-Muqaddimāt al-Mumahhtdāt,1:183–185; Sahnūn, al-Mudawwana (DārṢadr), 1:94; al-Ḥaṭṭāb al-Ra‘īnī, Mawāhīb al-Jalīl,2:177–187; al-Qarāfī, al-Dhakhīrah, 2:101–105. For Shāfi‘īschool, see: al-Shāfi’ī, al-Umm (Beirut: Dār al-Fikr, n.d.),1:109; al-Ramlī, Nihāyat al-Muhtāj (1992), 2:7–8, 13;al-Māwardī, al-Ḥāwī al-Kabīr, 2:165–171. For Ḥanafīschool, see Ibn Nujaym, al-Baḥr al-Rā’iq, 1:467, 469–476;Ibn ‘ābidīn, Hāshiyat Radd (1966), 1:405; al-Kāsānī, Badā’īal-Ṣanā’ī, pp. 543–546. For Hanbalī school, see IbnQudāmah, al-Mughnī (Dār Iḥyā’ al-Turāth al-’Arabī), 1:601;Ibn Mufliḥ, al-Mubdī, 1:361–367; al-Bahūtī, Kashshāfal-Qinā‘, 1:315–317. For Ja‘farī school, see al-Ṭūsī,al-Mabsùṭ, 1:87–88.

ON AWARAH OF SLAVES:Some of the late jurists argued that if a slave-girl willcause a fitnah she must cover her breasts or hair. Al-Ḥaṭṭābrelates that although a slave womans ‘awrah is the same as aman’s, some have said that it is reprehensible for someonewho is not her owner to view what is under her garments, orto view her breasts, chest, or whatever else “leads to fitnah”(wa mā yad’ū al-fitnah minhā). Consequently, despite havingthe same ‘awrah as men, it is preferred that she bare her headbut cover her body. Al-Ḥaṭṭāb, Mawāhib al-Jalīl, 2:180, 184.See also, al-Qarāfī, al-Dhakhīrah, 2:103–104. Al-Bahūtīrelates views suggesting that as a matter of caution (iḥtiyāṭ), itis preferrable that the slave-girl cover herself in the samefashion as an adult free woman, including covering her headduring prayer. Al-Bahūtī, Kashshāf al-Qinā‘ 1:316. Ibn‘Ābidīn also argues that most of the scholars of the Ḥanafīschool do not permit a slave woman to have her breasts,chest, or back exposed; however it is said that a slavewoman’s chest is part of her ‘awrah only in prayer but nototherwise. Nevertheless, Ibn Abidin finds this latter view525unconvincing. Ibn ‘Ābidīn, Hūshiya Radd (1966), 1:405. Seealso, Ibn Nujaym, al-Baḥr al-Rā’iq, 1:474; al-Marghīnāī,al-Hidāya, 1:44

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About Me

Adis Duderija is currently a Visiting Senior Lecturer at the University Malaya, Gender Studies. He received his Ph. D in 2010 from the University of Western Australia. He is the author of Constructing Religiously Ideal ‘Believer’ and ‘Muslim Woman’ Concepts: Neo-Traditional Salafi and Progressive Muslim Methods of Interpretation (Manahij), Palgrave, 2011. His other publications can be found on the tabs above.